Citation Nr: 1507862
Decision Date: 02/24/15 Archive Date: 02/26/15
DOCKET NO. 12-03 133 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to an initial evaluation in excess of 10 percent for residuals of a fracture of the left ankle.
2. Entitlement to service connection for a back disability.
3. Entitlement to service connection for arrhythmias.
4. Entitlement to service connection for a bilateral knee disability.
5. Entitlement to an initial evaluation in excess of 10 percent for rotator cuff tendonitis, right shoulder.
6. Entitlement to an initial evaluation in excess of 10 percent for Meniere's syndrome, to include a separate evaluation for peripheral vestibular disorder.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Solomon, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1986 to February 1993.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee: a March 2010 rating decision which granted service connection for residuals of a fracture of the left ankle and assigned a 10 percent evaluation effective November 30, 2009; a January 2011 rating decision which denied service connection for a back disability; a January 2012 rating decision which granted service connection for rotator cuff tendonitis, right shoulder and assigned a 10 percent evaluation effective August 31, 2010; an August 2013 rating decision which granted service connection for Meniere's syndrome with peripheral vestibular disorder and assigned a 10 percent evaluation effective September 7, 2012; and an April 2014 rating decision which denied service connection for arrhythmias and chondromalacia, bilateral knees.
A hearing was held on October 29, 2014, by means of video conferencing equipment with the appellant in Nashville, Tennessee, before Kathleen K. Gallagher, a Veterans Law Judge, sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. The hearing pertained to the claims for entitlement to an initial rating in excess of 10 percent for residuals of a fracture, left ankle and entitlement to service connection for a back disability. A transcript of the hearing testimony is in the claims file.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Reasons for remand: To provide the Veteran with contemporaneous VA examination; send the Veteran corrective notice; procure updated VA treatment records; determine whether the Veteran still desires hearings before a Decision Review Officer; schedule the Veteran for hearings before the Board; clarify the procedural posture of a claim; and issue statements of the case.
I. Back Disability
As an initial matter, a review of the claims file reveals a June 2013 Rating Decision with the Veteran's name, VA file number, and dates of service, which includes a grant of service connection for degenerative disc disease and degenerative joint disease of the lumbar spine. Somewhat confusingly, the rating decision references an October 2012 VA examination of the Veteran's lumbar spine, left hip, and left lower extremity radiculopathy that does not appear in the claims file, and notes that the VA examiner's rationale referenced 35 years of active duty as a paratrooper, whereas the Veteran served approximately 6.5 years of active duty. Other than this June 2013 Rating Decision and the associated code sheet, there is no other indication that service connection for a back disability has been granted, and in fact, a June 2013 Statement of the Case by a Decision Review Officer readjudicated the claim on appeal and denied service connection for a back disability. Therefore, on remand, the AOJ must clarify whether the claim for service connection for a back disability has already been granted.
Assuming without deciding that service connection has not been granted for a back disability and the issue remains on appeal, the AOJ should provide explanation regarding the June 2013 Rating Decision and then provide the Veteran with VA examination on the issue of entitlement to service connection for a back disability.
Assuming without deciding that the October 2012 VA examination pertained to another veteran, the Veteran has not yet been provided with VA examination relating to his claimed back disability. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court of Appeals for Veterans Claims (Court) held that an examination is required when there is (1) competent evidence of a current disability or recurrent symptoms, (2) evidence establishing an "in-service event, injury or disease," (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The threshold for finding a link between current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006).
The claims file contains an October 2011 treatment record that includes an impression of facet disease of the lumbar spine. The Veteran's service treatment records document incidents in May 1988 and April 1992 where the Veteran hit his back on a vehicle bumper resulting in an area of erythema and abrasion of T10-L2, and where the Veteran hurt his back playing volleyball with imaging showing sacralization of L5 on the right, respectively. The Veteran also submitted a statement from his private physician in November 2014 stating an opinion that the Veteran's current degenerative disease of the thoracic and lumbar spine is due to injuries incurred in the military. The Board finds that this evidence is sufficient to meet the low burden required to warrant a VA examination. As the November 2014 private opinion did not comment on or discuss the Veteran's intercurrent post-service injury in May 2004, where he fell exiting his work vehicle and struck his mid back on a step, the Board finds the opinion inadequate, on its own, to support a grant of service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case). The Veteran has asserted both that his current back disability is a result of his in-service back injuries and that his May 2004 fall resulted from his service-connected left ankle disability. Therefore, VA medical opinions should be sought regarding both theories of entitlement.
Additionally, because the Veteran has not yet been provided with notice regarding the laws and regulations pertinent to claims brought under the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's holding in Allen v. Brown, 8 Vet. App. 374 (1995), on remand, the Veteran must be provided with proper supplemental notice.
Finally, the Board notes that the Veteran requested a hearing before a Decision Review Officer (DRO) on his January 2012 Notice of Disagreement, but no such hearing appears to have been scheduled. On remand, the AOJ should clarify whether the Veteran still desires such a hearing, and if so, schedule him for one.
II. Residuals of Fracture, Left Ankle
The Veteran was most-recently provided with a VA examination for his residuals of fracture, left ankle in November 2010. At the November 2014 Board hearing, the Veteran testified that his ankle causes him extreme pain and that it had gotten worse with regard to range of motion. Additionally, while the November 2010 examination report noted that the Veteran did not use a brace or assistive device other than an Ace wrap when it really hurt, a September 2014 VA treatment record noted a plan to write up the Veteran for an Arizona brace to deal with his left ankle instability.
The Court has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given that the Veteran's testimony and treatment records indicate worsening since the most-recent VA examination, on remand, the Veteran should be scheduled for another VA examination to determine the current severity of his service-connected residuals of fracture, left ankle.
The Board notes that the most recent VA treatment record in the claims file is from August 2014. On remand, updated VA treatment records should be associated with the file.
III. Arrhythmias and Bilateral Knee Disability
A veteran has a right to request a hearing before the issuance of a Board decision. Bernard v. Brown, 4 Vet. App. 384, 393 (1993) (citing 38 U.S.C.A. § 7104(a) (West 1991)); 38 C.F.R. §§ 3.103(a) and (c), 19.9, 19.25, 20.704 (2014).
In his December 2014 Substantive appeal (VA Form 9) for the issues of entitlement to service connection for arrhythmia/heart murmur and a left and right knee disability, the Veteran requested a Board hearing at a local VA office. The Veteran has not yet been provided with a Board hearing with regard to these issues, and on remand, the Veteran should be scheduled for such a hearing.
The Board also notes that the Veteran requested a DRO hearing on his April 2014 Notice of Disagreement, but review of the claims file does not reveal whether one was provided. On remand, the AOJ should clarify whether the Veteran still desires such a hearing, and if so, schedule him for one, prior to scheduling the Veteran for a hearing before the Board.
IV. Rotator Cuff Tendonitis, Right Shoulder and Meniere 's Syndrome with Peripheral Vestibular Disorder
In a January 2012 rating decision, the RO granted service connection for rotator cuff tendonitis, right shoulder, and assigned a 10 percent evaluation effective August 31, 2010. The Veteran submitted a Notice of Disagreement in December 2012. No Statement of the Case (SOC) has yet been issued for the appeal of this claim.
In an August 2013 rating decision, the RO granted service connection for Meniere's syndrome with peripheral vascular disorder and assigned a 10 percent evaluation effective September 7, 2012. The Veteran submitted a Notice of Disagreement in September 2013 disagreeing with the evaluation, and asserting entitlement to an increased initial disability rating, to include a separate evaluation for peripheral vestibular disorder. No SOC has yet been issued for the appeal of this claim.
When a Notice of Disagreement has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). As adjudicative action on the appeals of the issues of entitlement to an initial evaluation in excess of 10 percent for rotator cuff tendonitis, right shoulder and an initial evaluation in excess of 10 percent for Meniere's syndrome with peripheral vestibular disorder has not yet been taken, the issues must be remanded for the issuance of an SOC and to give the Veteran the opportunity to complete an appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999).
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and determine whether he continues to desire a hearing before a DRO with respect to his appeals of the claims of entitlement to service connection for arrhythmias and a bilateral knee disability, or whether he wishes to withdraw his request for a DRO hearing. If the Veteran wants a DRO hearing, schedule him for one and then issue a supplemental statement of the case before scheduling the Veteran for a hearing before the Board. Should the Veteran withdraw his request for a DRO hearing, schedule the Veteran for a hearing before the Board in accordance with applicable procedures. In either case, the Veteran and his representative must be provided with notice as to the time and place to report for the hearing.
2. Obtain any and all of the Veteran's VA treatment records from August 2014 to the present. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found.
3. Thereafter, clarify whether the Veteran's claim for service connection for a back disability has been granted. The AOJ's attention is directed to a June 2013 rating decision contained in the claims file. If the AOJ determines that the issue is still on appeal, a memorandum should be associated with the file, and mailed to the Veteran, explaining the procedural posture of the claim and clarifying the significance of the June 2013 rating decision.
4. Thereafter, assuming without deciding that the claim for service connection for a back disability has not been granted and remains on appeal, provide the Veteran with corrective notice with regard to his claim for entitlement to service connection for a back disability, of how to substantiate a claim under the theory of secondary service connection.
5. Thereafter, assuming without deciding that the claim for service connection for a back disability has not been granted and remains on appeal, schedule the Veteran for a VA examination with an appropriate medical professional to assess the nature and etiology of his claimed back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination.
The examiner should then address the following:
* Provide a diagnosis for any back disability present at any time during the relevant appeal period (September 2010 to present).
For any diagnosis provided, state the following:
a. Whether it is at least as likely as not (50 percent or greater probability) that the back disability arose during active service or is otherwise related to any incident of service.
The examiner's attention is directed to service treatment records from May 1988, noting that the Veteran hit his back on a vehicle bumper resulting in an area of erythema and abrasion at T10-L2, and April 1992, noting that the Veteran hurt his back playing volleyball and that imaging showed sacralization of L5 on the right. The examiner's attention is also directed to private treatment records from May 2004 and the following months documenting back injury from an incident where the Veteran fell and hit his back exiting a work vehicle.
b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability was proximately caused by his service-connected left ankle disability.
The examiner is advised that the Veteran has asserted that instability of the left ankle caused his falls during service and in May 2004.
c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability was aggravated by his service-connected left ankle disability.
For purposes of this analysis, 'aggravation' is defined as a permanent worsening of the not service-connected disability beyond that due to the natural disease process.
The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.
The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion.
6. After completing the development requested in part 2, arrange for the Veteran to undergo a VA joints examination with an appropriate medical professional to determine the current severity of his service-connected residuals of fracture, left ankle. All indicated studies, including range of motion studies using a goniometer, must be conducted, and all findings must be reported in detail. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination.
a. The examiner must conduct full range of motion studies of the left ankle and document findings in terms of degrees. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins.
b. The examiner must then provide specific findings as to the range of motion of the left ankle after three repetitions of movement, and state whether there is additional functional impairment due to pain, weakness, excess fatigability, and/or incoordination. Any additional loss of range of motion upon repetitive motion testing should be noted in terms of degrees of motion lost as well as additional symptomatology which results, if possible. If such information cannot be feasibly determined, the examiner must explain why this information cannot be provided.
c. Then, after reviewing the Veteran's complaints and medical history, and requesting further detail from the Veteran, if necessary, provide an opinion regarding whether there is additional functional impairment due to pain, weakness, excess fatigability, and/or incoordination during flare-ups. The Veteran's reports of the effects, frequency and duration of flare-ups should be recorded with as much specificity as possible. Any additional loss of range of motion of the Veteran's left ankle during flare-ups should be noted in terms of degrees of motion lost as well as additional symptomatology which results, to the extent possible. If such information cannot be feasibly determined, the examiner must explain why this information cannot be provided.
The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.
The examiner must include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion.
7. After conducting any additional development deemed necessary, readjudicate the claims for entitlement to an initial evaluation in excess of 10 percent for rotator cuff tendonitis, right shoulder and entitlement to an initial evaluation in excess of 10 percent for Meniere's syndrome with peripheral vestibular disorder, to potentially include a separate evaluation for peripheral vestibular disorder, and issue a Statement of the Case addressing the issues. The appellant should be provided the opportunity to perfect a timely substantive appeal (VA Form 9) with respect those issues.
8. After completing all necessary development requested in parts 2 and 6, and conducting any additional development deemed necessary, readjudicate the claim for entitlement to an initial evaluation in excess of 10 percent for residuals of fracture, left ankle, in light of all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.
9. Contact the Veteran and determine whether he continues to desire a hearing before a DRO with respect to his appeal for the claim of entitlement to service connection for a back disability, or whether he wishes to withdraw his request for a DRO hearing. If the Veteran wants a DRO hearing, schedule him for one. Then after completing the development requested in parts 2-5, and any additional development deemed necessary, readjudicate the claim for entitlement to service connection for a back disability in light of all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).